IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120021289 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Through a court remand from the United States Court of Federal Claims, the applicant requests, in effect, reconsideration of her earlier applications to the Army Board for Correction of Military Records (ABCMR) for correction of her record to show she is entitled to enhanced military disability severance pay by:

	a.  changing item 10d of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show her disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense; and

	b.  as a result of this correction, recalculating her disability severance pay to be based upon 6 years of service.

2.  The United States Court of Federal Claims directs the ABCMR to:

	a.  provide the Department of Defense (DOD) with "an opportunity to explain the reasons for its interpretation of 'combat-related operations'; particularly its decision to exclude 'conditions simulating war' from its definition of 'combat-related operations'"; and

	b.  "consider and evaluate" whether DOD's interpretation, as captured in the relevant Directive Type Memorandum (DTM), "constituted an impermissible interpretation of Title 10 United States Code (10 USC), subsection (§) 1212(c)(1)(A)."

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110003439 on 29 September 2011 and administrative record.

2.  The applicant and counsel did not provide any new evidence.  However, the United States Court of Federal Claims directed the Board to provide the DOD with "an opportunity to explain the reasons for its interpretation of 'combat-related operations'; particularly its decision to exclude 'conditions simulating war' from its definition of 'combat-related operations.'"  The Court also directed the ABCMR to "consider and evaluate" whether DOD's interpretation, as captured in the relevant DTM, "constituted an impermissible interpretation of §1212(c)(1)(A)."

3.  The essential and uncontroverted facts of applicant's case, as captured in the Court's Opinion and Order, are as follows:

	a.  She began her military service when she enlisted in the New York Army National Guard on 17 March 1993.

	b.  She injured her back in the line of duty while lifting and moving a computer on 17 August 2000.

	c.  On 4 June 2004, she suffered another back injury when she fell in full body armor through a window to the floor approximately eight feet below during a building-clearing exercise as training for active duty service in Operation Iraqi Freedom.

	d.  The training took place at Fort Drum, New York.

	e.  She subsequently deployed to Iraq and Kuwait for ten months in 2005.

	f.  During that time, she was required to wear body armor, which aggravated her back pain. 

4.  She was ordered to active duty effective 24 May 2004 in support of Operation Iraqi Freedom.  She served in Kuwait/Iraq from 4 January to 5 November 2005.  She was released from active duty on 23 November 2005.

5.  A DA Form 199, dated 22 April 2009, shows an informal PEB found her physically unfit for chronic low back pain.

	a.  The PEB stated she had a history of back pain since 2000 exacerbated by individual body armor (IBA) wear in Iraq in 2005.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.

	b.  Item 10c stated her disability did not result from a combat-related injury.

	c.  Item 10d stated her disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

6.  On 29 April 2009, she did not concur with the findings of the PEB and she requested a formal hearing.

7.  On 5 June 2009, a new DA Form 199 was issued as an administrative correction to the DA Form 199, dated 22 April 2009, to correct item 10c.

	a.  The PEB added the statement:  "Soldier injured her back during [military operations on urbanized terrain] site training of clearing a building while in full 'battle rattle' to include IBA with plates, Kevlar, and weapon at Fort Drum, NY, in June 2004 during a period of war."

	b.  Item 10c was corrected to show her disability did result from a combat-related injury.

	c.  Item 10d still showed the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

	d.  All other provisions of the original DA Form 199 remained the same.

8.  On 5 June 2009, she agreed with the revised findings on the DA Form 199 and withdrew her demand for a formal hearing.

9.  On 16 July 2009, she was discharged from the Army National Guard.  She was authorized disability severance pay in pay grade E-5 based on 4 years, 8 months, and 9 days of active service.

10.  The Fiscal Year 2008 National Defense Authorization Act (NDAA), which became Public Law 110-181 on 28 January 2008, authorized an enhancement of disability severance pay for members of the Armed Forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in the line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability-separated or retired as of 28 January 2008.

11. Title 10 USC §1212 (Disability Severance Pay) states in relevant part as follows:

	"(a)  Upon separation from his armed force under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying (1) the member's years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in section (c)) by, (2) the highest of the following amounts.

	(b)  For the purposes of subsection (a), a part of a year of active service that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

	(c)(1)  The minimum years of service of a member for purposes of subsection (a)(1) shall be as follows:

		(A)  Six years in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

		(B)  Three years in the case of any other member." 

12.  DOD Instruction (DODI) 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures under DOD Directive 1332.18 (Separation or Retirement for Physical Disability) and 10 USC.

	a.  Paragraph E3.P5.1.2 (Armed Conflict) states that physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

	b.  Paragraph E3.P5.1.2.1 states that armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.

	c.  Paragraph E3.P5.2.2 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under the following circumstances:

		(1)  as a direct result of armed conflict.  The criteria are the same as in paragraph E3.P5.1.2,

		(2)  while engaged in hazardous service,

		(3)  under conditions simulating war, or

		(4)  caused by an instrumentality of war.

13.  The DTM from the Under Secretary of Defense, dated 13 March 2008, revises and supplements DODI 1332.38.

	a.  A new paragraph 5.5.8 directed the Secretaries of the Military Departments to identify and certify members with a disability incurred in the line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

	b.  Paragraph 5.5.8.1 states the determination of "incurred during performance of duty in combat-related operations" shall be made consistent with criteria set for the paragraph E3.P5.1.2 of DODI 1332.38.

	c.  The DTM specifically states there is no change to paragraph E3.P5.1.2.

14.  On 15 February 2013, the Office of the Assistant Secretary of Defense (Health Affairs) Warrior Care Policy provided the ABCMR with the following in response to a request for an advisory opinion pursuant to the Court's request: 

	This memorandum is in response to a request dated 6 December 2012 (SUBJECT:  Request for Advisory Opinion - [Applicant] (AR20120021289)) seeking an advisory opinion from the Office of Warrior Care Policy.  The request arises on remand by the United States Court of Federal Claims…. The purpose of the remand is to provide the Department of Defense an opportunity to explain its interpretation of the term “combat-related operations.”

	The NDAA for Fiscal Year 2008, §1646, amended 10 USC §1212, by increasing the maximum years of service to be credited for purposes of disability severance pay from 12 to 19 years, and by establishing the minimum number of years of service to be credited as six years in the case of a service member separated for a disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense, and three years in the case of any other member.  In amending the statute, Congress did not define the term "combat-related operations."  At issue, is the Department's interpretation of the language "incurred during the performance of duty in combat-related operations."

	In an effort to discern Congress' intent regarding "combat-related operations," the Department reviewed the Congressional Record, for the 110th Congress First Session, congressional hearings, legislation in various stages of enactment, and Senate press releases on severance pay for injured Service members.  The central piece of legislation studied was Senate bill S.1606, Dignified Treatment of Wounded Warriors Act, as it was the genesis of the provision to enhance disability severance pay.  As initially introduced, the bill did not contain the phrase "incurred during the performance of duty in combat-related operations"; that language was added during a subsequent Senate Armed Services Committee (SASC) mark-up session.  The section of the bill listing a definition of terms used in the legislation did not include "combat-related operations." 

	In defining the terms "combat-related operations" the Department reviewed the DOD Dictionary of Military Terms, http://www.dtic.mil/doctrine/DOD_dictionary/.  The Dictionary defines the term "operations" as "(DOD) 1.  A series of tactical actions with a common purpose or unifying theme.  Source:  JP 1; (DOD) 2.  A military action or the carrying out of strategic, operational, tactical, service, training or administrative military mission.  Source:  JP 3."  The term "operations" and its meanings are derived from Joint Publication documents that set forth joint doctrine to govern activities and performance of the Armed Forces of the United States in joint operations.  JP 1, Joint Doctrine for the Armed Forces of the United States, specifies the authorized command relationships and authority of military commanders, provides guidance for command and control, prescribes guidance for organizing joint forces, and describes policy for selected joint activities.  It also provides the doctrinal basis for interagency coordination and for U.S. military involvement in multiagency and multinational operations.  (http://www.dtic.mil/doctrine/new_pubs/jp1.pdf).  JP 3, Joint Operations, is the keystone publication that forms the core of joint warfighting doctrine and establishes the framework for DOD forces' ability to fight as a joint team in a wide variety of activities, tasks, missions, and operations that vary in purpose, scale, risk, and combat intensity.  JP 3 groups the term "Operations" into three areas that compose the range of military operations:  (1)  Military Engagement, Security Cooperation, and Deterrence - these are ongoing routine activities that establish, shape, maintain, and refine relations with other nations and domestic civil authorities (e.g., state, governors or local law enforcement); (2)  Crisis Response and Limited Contingency Operations - these can be small-scale, limited duration operations such as strikes, raids, and peace enforcement, which might include combat depending on the circumstances; (3)  Major Operations and Campaigns - these are extended-duration, large-scale operations that usually involve combat (http://www.dtic.mil/doctrine/new_pubs/jp3_0.pdf).  Since §1646 used the term "combat-related operations" the Department determined that of this range of military operations, only those that are "combat-related" qualify.  Thus operations under (1)  Military Engagement, Security Cooperation, and Deterrence, generally would not qualify because they are not combat-related.
A DOD activity such as service training, would not qualify because it is neither an operation nor combat-related. 

	DOD implemented §1646 intending the entitlement for those "at the tip of the spear," meaning those service members taking the greatest risks and waging the war at risk of death or serious injury.  Since Congress did not define what it meant by "incurred during the performance of duty in combat-related operations," tying "combat-related operations" to "armed conflict" allowed service members who were disabled in direct combat to be covered.  Unlike 10 USC §1413a, which defines the term "combat-related disability" [sic] as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1)  is attributable to an injury for which the member was awarded the Purple Heart; or (2)  was incurred (as determined under criteria prescribed by the Secretary of Defense) - (A)  as a direct result of armed conflict; (B)  while engaged in hazardous service; (C)  in the performance of duty under conditions simulating war; or (D)  through an instrumentality of war, §1646 did not define combat-related operations.  Additionally, where the term "combat-related disability" appeared in other sections of the NDAA 2008 (§§511a, 641,1632, 1675), Congress stated that for those sections, the term "combat-related disability" had the same meaning given in 10 USC §1413a.  No such cross reference appeared in §1646.  Because a Service member can incur a combat-related disability as defined in 10 USC §1414a during activities other than combat-related operations, the Department determined that the term "combat-related operations" contemplated something more, and that the "enhanced" severance pay for combat-related operations would be a "special" benefit for those injured at the "tip of the spear."
	Consistent with the desire to provide an additional benefit to those at the "tip of the spear," the Department issued a Directive-Type Memorandum (DTM), implementing §1646.  The DTM directs that "incurred during performance of duty in combat-related operations" determinations shall be made consistent with criteria set forth in paragraph E3.P.5.1.2, of DODI 1332.38, "Physical Disability Evaluation" dated November 14, 1996.  The effect of this is to limit the term "combat-related operations" to physical disability or injury incurred in the line of duty as a direct result of armed conflict.  The term "armed conflict" is defined in DODI 1332.38, Enclosure 3.P5.1.2, as follows:

	E3.P5.1.2.  Armed Conflict (5 USC 3502, 5532, 6303) reference duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

	E3.P5.1.2.1.  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot or any other action in which service members are engaged with a hostile or belligerent nation, faction, force or terrorists.

	E3.P5.1.2.2.  Armed conflict may include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status.

	By aligning the definition of "armed conflict" with the term "combat-related operations" the Department determined that a disability incurred as a "direct result of armed conflict" was a direct causal link to "combat-related operations" and as such, was deemed to be the "tip of the spear" for purposes of enhanced severance pay.

	In the absence of clear Congressional intent, the addition of the word "operations" to the term "combat-related" factored heavily into DOD's decision-making process.  The Department construed §1646 to allow for an additional and distinct benefit for those at the tip of the spear.  The "tip of the spear" approach allows DOD to evaluate where the disability occurred and how the disability was incurred.  The criterion for how the disability was incurred for purposes of §1646 focuses on "armed conflict."  Senior leadership of the Department wanted to ensure this benefit for those service members at the "tip of the spear." 

15.  On 11 March 2013, the applicant's counsel provided a 17-page (including the facsimile cover sheet) response to the DOD advisory opinion, which is appended hereto.  Counsel's analyses and arguments, by subcategory, include the following: 

	a.  The Term "Combat-Related" as Used in §s 1632(b) and 1646(a) of the Wounded Warrior Act Must be Interpreted to Have the Same Meaning;

	b.  The Term "Combat-Related" in § 1646(a) of the Wounded Warrior Act Must Be Read In Pari Materia With Other Statutes Which Construe that Term to Include Conditions Simulating War;

	c.  Construing the Term "Combat-Related" in §1646(a) of the Wounded Warrior Act to Include Conditions Simulating War Ensures a Coherent and Consistent Statutory Scheme to Enhance Benefits for Injured Members of the Armed Forces;

	d.  The DTM's Interpretation of §1646(a) of the Wounded Warrior Act Renders Superfluous or Insignificant the Combat-Related Operations Prong of the Statute;

	e.  The DTM Renders Meaningless the Word "Related" in the Term-Combat-Related" as used in §1646 of the Wounded Warrior Act;

	f.  The Legislative History of the Wounded Warrior Act Clearly Reflects that Congress Intended that Members of the Armed Forces Who Incur Disabilities as a Result of Training or Preparation for Combat Are Eligible for the Enhanced Severance Benefits Provided by the Combat-Related Operations Prong of §1646(a);

	g.  The DOD's Interpretation of §1646(a) is Invalid Because It Unreasonably Created Unexplained Conflicting and Inconsistent Regulatory Provisions.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR concludes that the plain language of 10 USC §1212(c)(1)(A) gave DOD the authority to designate what "combat-related operations" meant for purposes of disability severance pay enhancement and that DOD, as captured in its advisory opinion, has articulated a reasonable interpretation of that phrase.  Had Congress intended DOD to simply adopt the language, interpretations, and definitions derived from the law related to disabilities compensated by the Department of Veterans Affairs or the Internal Revenue Code, it need only have repeated those phrases or provided cross references to the applicable definitions.  It did not.  Counsel cites to the Internal Revenue Code and also Executive Orders designating Afghanistan and Iraq as combat zones and essentially argues that all "combat-related operations" occur in "combat zones."  Such an interpretation would, indeed, swallow the "combat-related operations" prong.  However, not all "combat-related operations" necessarily occur in designated "combat zones."  By ready example, the raid against Osama Bin Laden's compound in Pakistan was not conducted within a designated combat zone, but the DOD interpretation of "combat-related operations" would extend enhanced benefits to Soldiers who incurred a disabling injury in the course of that operation.  

2.  DOD's decision to interpret the phrase "combat-related operations" in a manner consistent with DOD doctrine so as to align "combat-related operations" with "armed conflict" and exclude "conditions simulating war" is a reasonable exercise of its discretion.  Further, the DOD interpretation of "combat-related operations" is not superfluous or subsumed in the "combat zone" prong in that it untethers "combat-related operations" from any particular locale focusing instead on the armed conflict aspect and risk assumed by those at the "tip of the spear."            
3.  The ABCMR concludes that the Medical Evaluation Board (MEB)/PEB acted within its discretion in determining that applicant's disabling back injury was not incurred in a combat zone and that it also did not constitute a disability incurred in the performance of duty in "combat-related operations" as that term was interpreted by DOD within the discretion given it by Congress.  In its previous consideration of applicant's case the ABCMR also properly reviewed the applicant's case and the MEB/PEB's discretionary actions through the relevant DOD guidance.  The ABCMR, having properly applied this guidance in its prior consideration of the applicant's case, thus here affirms the decision to deny the applicant relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient to amend the decision of the ABCMR set forth in Docket Number AR20110003439, dated 29 September 2011, from which this reconsideration on remand originated.   



                                                       ___________X___________
                                                                 CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



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